Tamati v The King
[2023] NZHC 2846
•11 October 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-31
[2023] NZHC 2846
BETWEEN JAXON HENARE TAMATI
Appellant
AND
THE KING
Respondent
Hearing: 19 September 2023 Appearances:
N P Bourke for Appellant (via AVL)
W J Harvey and S C Baker for Respondent
Judgment:
11 October 2023
JUDGMENT OF McQUEEN J
[1] On 7 August 2023, Mr Jaxon Tamati was sentenced alongside Mr Matthew Raana-Parker and Mr Hayden Cameron by Judge Greig in the New Plymouth District Court, to four years and four months’ imprisonment on a single charge of injuring with intent to cause grievous bodily harm.1 Mr Tamati pleaded guilty to that charge.
[2] Mr Tamati appeals against that sentence, saying that it is manifestly excessive. He says that the starting point was outside of the available range, insufficient consideration was given to his lesser involvement and reduced culpability, and that inadequate credit was given for his guilty plea.
[3] The Crown opposes the appeal and submits that the end sentence was within range. Counsel say that the starting point reflects conventional sentencing principles for grievous bodily harm offending, and that the guilty plea discount was appropriate.
1 R v Raana-Parker [2023] NZDC 16457.
TAMATI v R [2023] NZHC 2846 [11 October 2023]
[4]For the reasons below, I consider that the appeal should be dismissed.
Factual background
The offending
[5] Mr Tamati is a patched member of the Rebels gang. On 10 October 2020, there was a Rebels function at their president’s address. Mr Tamati, Mr Raana-Parker and Mr Cameron all attended. Mr Raana-Parker is a patched member and Mr Cameron at that time was a prospect.
[6] In the early hours of 11 October 2020, the victim in this matter, Mr Koha, drove to Mr Tamati’s house, with the intention of obtaining methamphetamine, but found that no one was home. Mr Koha was known to Mr Tamati, Mr Raana-Parker and Mr Cameron. While Mr Koha was at Mr Tamati’s house, Mr Tamati arrived home with his partner, intoxicated. Mr Tamati was infuriated that Mr Koha had arrived unannounced, despite his apologies.
[7] While Mr Tamati spoke with a friend who had arrived with Mr Koha, Mr Koha went outside to his car, where he was confronted by Mr Cameron. During that confrontation, Mr Koha punched Mr Cameron, rendering him unconscious. Following this, Mr Koha became scared that he would be subjected to gang retaliation, and he therefore ran away to hide. About an hour later, Mr Raana-Parker called Mr Koha and told him to go back to Mr Tamati’s house. Mr Koha trusted Mr Raana-Parker and did as he asked, on the proviso that they meet alone. Mr Raana-Parker then picked Mr Koha up and took him back to Mr Tamati’s house, accompanied by Mr Cameron and another unidentified person unknown to him.
[8] On arrival, Mr Tamati, Mr Raana-Parker and Mr Cameron took Mr Koha to a stand-alone garage. While inside the garage, Mr Tamati threw punches at Mr Koha which did not connect with Mr Koha, due to Mr Tamati’s intoxication. Mr Raana- Parker then used jiu-jitsu techniques to break both of Mr Koha’s arms. Although Mr Tamati and Mr Cameron did not share a common intention for that to occur, Mr Tamati, Mr Raana-Parker and the other associate then kicked and punched
Mr Koha. Following this attack, Mr Cameron drove Mr Koha to another address where he was left. He was then able to obtain help.
[9] Mr Koha was taken to hospital and admitted to the intensive care unit. As a result of the assault, he suffered two broken arms, one of which was a compound fracture. He underwent two extensive surgeries to reconstruct both arms. He has metal rods inserted into both arms and he was unable to use his arms in any manner for at least six weeks. He also suffered broken ribs, head injuries, a severe concussion, extensive swelling and bruising to his head, face, arms and ankle. There was a small laceration to his head.
[10] Mr Tamati was charged with wounding with intent to cause grievous bodily harm as a party alongside Mr Raana-Parker and Mr Cameron.2 He later pleaded guilty to a reduced charge of injuring with intent to cause grievous bodily harm.3
Criminal and bail history
[11] Mr Tamati has a criminal history. He has 25 previous convictions, involving driving, non-compliance with community based sentences, violence and dishonesty offending. His last conviction was in 2018, when he was convicted of breaching conditions of supervision and two charges of assault with intent to injure, although he has spent the majority of the period since in custody.
District Court judgment
[12] Mr Raana-Parker, Mr Tamati, Mr Cameron were all sentenced at the same time. The Judge described the impact of the offending on the victim in the following manner:4
… he is a broken man. It is clear from the description he gave at the oral evidence hearing we had a couple of years ago that the physical effects of his injury will be lifelong and life-limiting. The psychological effects of those injuries will also have a huge impact. It was clear at the hearing he is a very traumatised man and although I have been invited to put another take on that
2 Crimes Act 1961, ss 188(1) and 66; maximum penalty 14 years’ imprisonment.
3 Sections 189(1) and 66; maximum penalty ten years’ imprisonment.
4 Above n 1, at [27].
I do not. He was torn, I accept that, he did not want to be there giving evidence but he was a very battered man indeed.
[13] In respect of Mr Tamati, the Judge noted that the aggravating factors, acknowledging that some of them overlapped, were: extreme violence to a high degree, moderate to high premeditation, attacks to the head, multiple attackers, the vulnerability of the victim, the gang element, and vigilante action.5 The Judge considered that with the presence of these aggravating factors the offending fell well within band three of the Taueki guideline for grievous bodily harm offending.6
[14] The Judge accepted that Mr Tamati played a slightly lesser role in the offending than Mr Raana-Parker. The Judge accepted that his role was ‘appreciably less’ in terms of premeditation and organisation but went on to say:7
I do not agree that the broken arms, as suggested by Mr Keegan, were the worst of the injuries, far from it. They were particularly sinister because they were so deliberate but the remaining injuries were actually far worse and will have a far longer effect. I do not agree with Mr Keegan that the starting point should be four and a half to five years. My starting point is seven years or 84 months. It has the same aggravating factors present as for both you and Mr Raana-Parker. I am not going to increase it for your previous convictions, they do not appear to justify it and at least one of them was a very long time ago.
[15] The Judge then, from the seven year starting point, allowed the following discounts:
(a)15 per cent or 12 and a half months for Mr Tamati’s guilty plea;
(b)five months for remorse and rehabilitation prospects;
(c)10 per cent or eight and half months for Mr Tamati’s background; and
(d)six months for time spent on EM or restricted bail.
[16] That resulted in an end sentence for Mr Tamati of four years and four months’ imprisonment. The Judge adopted a starting point of seven and a half years’
5 At [39] and [74].
6 See R v Taueki [2005] 3 NZLR 372 (CA).
7 Above n 1, at [74].
imprisonment for Mr Raana-Parker, and imposed a final sentence of five years’ imprisonment, after uplifting for previous convictions, and discounting for his guilty plea, personal background, and time spent on EM bail. The Judge sentenced Mr Cameron to 12 months’ supervision, having adopted a starting point of 12 months’ imprisonment, and discounting 25 per cent for his “very early” guilty plea, and acknowledging his lack of previous convictions. The Judge also appeared to give credit to Mr Cameron’s prospects for rehabilitation, and compliance with the terms of his bail.
Approach to appeal
[17] Under s 250 of the Criminal Procedure Act 2011, the Court must allow a sentence appeal if satisfied there is an error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.8 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.9
The starting point
Submissions for Mr Tamati
[18] Counsel for Mr Tamati, Mr Bourke, submits that the Judge failed to adequately assess Mr Tamati’s role and therefore his culpability. Mr Bourke accepts that in certain circumstances it is difficult to properly distinguish between the different roles played by offenders, but says that in the present case, Mr Tamati’s role can be distinguished from Mr Raana-Parker. He says that Mr Tamati’s starting point should have been significantly less than Mr Raana-Parker’s starting point, and that the appropriate starting point was in the vicinity of four and a half years’ imprisonment. He refers to the cases of R v Wilkie-Morris, Tout v Police, Rapana v R, Te Ruki v R, Aitken v R, and Parker v Police, saying that they show that Mr Tamati’s starting point was manifestly excessive.10
8 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
10 R v Wilkie-Morris [2016] NZHC 259; Tout v Police [2021] NZHC 2227; Rapana v R [2014] NZCA 231; Te Ruki v R [2018] NZCA 319; Aitken v R [2022] NZCA 593; and Parker v Police [2022] NZHC 2124.
Submissions for the Crown
[19] Mr Harvey, Crown counsel, submits that the seven year starting point correctly reflects the principles set out in Taueki, and was in the appropriate range. He says that the Judge was correct to conclude that the offending fell within band three of Taueki, given the aggravating factors present. He says therefore that the Judge was comfortably able to view the offending as being within band three, and that a starting point of seven years was available, taking into account a recalibration to reflect the lower maximum penalty (which he submits suggests a starting point between six and a half to ten years). As a cross-check on consistency, Mr Harvey relies on Aitken v R and Taylor v R, and submits that the cases relied upon by Mr Bourke are less similar and may therefore be distinguished.11
Discussion
[20] The guideline that is applied for the purpose of sentencing grievous bodily harm offending was set out by the Court of Appeal in R v Taueki.12 The Court in that case set out three bands, as follows
(a)Band One: involving violence at the lower end of the spectrum, without life-threatening implications, and with none or one of the identified aggravating features present. This band requires a starting point of three to six years’ imprisonment.
(b)Band Two: involving two or three of the identified aggravating features present. This band requires a starting point of five to ten years’ imprisonment.
(c)Band Three: involving serious offending with three or more of the identified aggravating features present, where the combination is particularly grave. This band requires a starting point of nine to 14 years’ imprisonment.
11 Aitken v R, above n 10; and Taylor v R [2021] NZCA 606.
12 R v Taueki, above n 6.
[21] As noted by the District Court Judge, this guideline needs to be altered to reflect the fact that Mr Tamati pleaded guilty to injuring with intent to cause grievous bodily harm, which has a maximum penalty of ten years’ imprisonment, rather than wounding with intent to cause grievous bodily harm, which has a maximum penalty of 14 years’ imprisonment.13 I accept, as Mr Bourke submits, that the placement of the offending within the bands identified in Taueki is not simply an arithmetical exercise but rather requires an overall assessment of the culpability of Mr Tamati’s offending.
[22] The Court of Appeal identified a number of aggravating factors in Taueki.14 As noted, in the present case, the Judge considered that the same aggravating factors applied to both Mr Raana-Parker and Mr Tamati. While acknowledging that some overlapped, the Judge identified these as: extreme violence to a high degree, moderate premeditation, attacks to the head, multiple attackers, the vulnerability of the victim, the gang element, and vigilante action. I agree with the Judge that all of those aggravating factors were present and would add to that the fact that serious injury resulted. As a result of that conclusion, and the facts as they were before the District Court, I am not satisfied that the Judge erred in concluding that the offending in this case was “well into band 3”.15
[23]As to Mr Tamati’s role in the offending, Mr Bourke submitted that:
(a)Mr Tamati was unsurprisingly furious about Mr Koha being in his house;
(b)Mr Tamati was not involved in the fight between Mr Cameron and Mr Koha;
(c)Mr Tamati was not the person who contacted Mr Koha or picked him up and brought him back to his house;
(d)Mr Tamati initially attempted to punch Mr Koha but was unable to;
13 See Solicitor-General v Milne [2020] NZCA 134 at [34].
14 R v Taueki, above n 6, at [31].
15 Above n 1, at [39].
(e)Mr Tamati had no knowledge that Mr Raana-Parker would break Mr Koha’s arms, and did not intend for that to happen; and
(f)the remaining violence inflicted by Mr Tamati was simply some kicking and punching.
[24] I do not accept that any of these matters mitigate Mr Tamati’s culpability. Mr Tamati was not charged with being angry about Mr Koha’s presence in his house, and nor is his non-involvement in the altercation between Mr Cameron and Mr Koha relevant to his culpability for the offending for which he was charged. Mr Raana- Parker was likewise not involved in the altercation between Mr Cameron and Mr Koha. Mr Tamati was not sentenced on the basis that he shared a common intention with Mr Raana-Parker to break Mr Koha’s arms, nor is his initial inability to connect his punches with Mr Koha a matter that mitigates his culpability.
[25] The remaining violence inflicted by Mr Tamati was part of a sustained and premeditated beating by multiple persons, two of whom are patched gang members, involving attacks to the head, extreme violence and serious injury, in response to the events which directly preceded it. As submitted by the Crown, taking the view most favourable to Mr Tamati, the aggravating factors of his offending would be serious violence and injury, multiple attackers, attacks to the head, and vigilante action. In those circumstances, Mr Tamati’s culpability remains high, and the appropriate band would be band three.
[26] The District Court Judge distinguished between Mr Raana-Parker and Mr Tamati for the purpose of their starting points, accepting that Mr Tamati’s culpability was lesser. The difference between their starting points was six months. The Judge agreed that Mr Tamati played a ‘slightly lesser role’ (although he threw the first punches) and that his involvement was appreciably less than Mr Raana-Parker’s in terms of premeditation and organisation, but went on to say that:16
I do not agree that the broken arms, as suggested by Mr Keegan, were the worst of the injuries, far from it. They were particularly sinister because they
16 Above n 1, at [74].
were so deliberate but the remaining injuries were actually far worse and will have a far longer effect.
[27] Counsel disagreed as to whether that was an appropriate conclusion. In particular, counsel differed as to whether it was appropriate for the District Court Judge to have regard to matters that were before the District Court and Court of Appeal in pre-trial matters, in a sentencing that proceeded upon the basis of an agreed summary of facts. Counsel took different positions on whether doing so affected the Judge’s proper assessment of Mr Raana-Parker’s and Mr Tamati’s relative culpabilities.
[28] Mr Bourke submits that it is significant that Mr Tamati was not involved in the breaking of Mr Koha’s arms. He submits that the only injuries that could be attributed to Mr Tamati were a severe concussion, swelling and bruising to the head and body, and a small laceration to the head, and that the Judge was wrong to conclude that those injuries were “far worse” than the broken arms. He says it was clear through the earlier evidence that Mr Koha was most concerned about his arms. Mr Bourke therefore says that the Judge sentenced Mr Tamati other than on the basis of the summary of facts.
[29] Mr Harvey submits that the extent of Mr Koha’s injuries referred to in the summary of facts was an issue fully ventilated before the Court and was well within the Judge’s and trial counsel’s knowledge. He accepts that the summary of facts does not describe Mr Koha’s injuries in the manner described by the Judge, but submits that the reality of those injuries was within the Judge’s knowledge, and that it was open to the Judge to make an inference about the psychological impact of the attack. Mr Harvey says that in any event, the issue remains whether the starting point was correct. He submits that the same aggravating features were present for both Mr Raana-Parker and Mr Tamati, with a higher starting point justified for Mr Raana- Parker. He says the disparity between Mr Raana-Parker and Mr Tamati was appropriate in the circumstances.
[30] The preliminary hearing referred to by counsel involved Mr Koha’s evidence. Mr Koha initially spoke to police regarding the attack, but was a reluctant witness, and then denied his recollection of events, no doubt anticipating further gang retaliation if he gave evidence that was contrary to the interests of Mr Tamati and his co-offenders.
In the District Court, after declaring Mr Koha a hostile witness, Judge Grieg made an order that the police could give evidence of what Mr Koha said to them before withdrawing his co-operation. Mr Tamati and his co-offenders appealed that ruling to the Court of Appeal.17 In the course of that pre-trial matter before the District Court, medical evidence was provided as to the nature and extent of Mr Koha’s injuries, for the purpose of assessing whether his memory of the night of the attack was reliable.
[31] I accept Mr Harvey’s submission that on appeal, the ultimate question is whether the sentence imposed by the Judge was within range.18 The arguments made about the Judge’s use of inference do not alter that position. In any event, reasoning by way of inference is not uncommon when it comes to sentencing. Further, in a gang violence context, the Court of Appeal has recognised that different roles do not necessarily reflect lesser culpability.19 Although reductions may be warranted for limited knowledge,20 in many cases involving violence committed by a group, offenders with different roles have properly been regarded as sharing essentially the same culpability.21
[32] In the present case, the Judge did distinguish between Mr Tamati and Mr Raana-Parker on the basis that Mr Tamati did not share a common intention with Mr Raana-Parker to break Mr Koha’s arms, and was less involved in the premeditation and organisation of the offending—but in all other respects, concluded that Mr Tamati’s culpability was the same as Mr Raana-Parker. I do not consider that the Judge erred in doing so. Given the context of the offending, I consider that it was appropriate to conclude that Mr Tamati’s culpability was largely the same as Mr Raana-Parker’s, notwithstanding their different roles.
[33] Counsel identified several cases which they submitted were of assistance in cross-checking whether an appropriate starting point was reached in the District Court and I consider those now.
17 See R v Tamati [2021] NZDC 1728; and Raana-Parker v R [2022] NZCA 633.
18 See for example Te Ao v R [2023] NZCA 327 at [16]; citing Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [39]; and Green v Police [2014] NZHC 444 at [21].
19 Te Ruki v R, above n 10, at [40].
20 See for example R v Royal [2009] NZCA 65; Solicitor-General v Morunga [2015] NZHC 1954; and Kingston v R [2010] NZCA 460.
21 See Karaitina v R [2014] NZCA 126 at [20]; and Howard v R [2018] NZCA 633 at [25].
[34]Mr Bourke relied upon the following cases:22
(a)In R v Wilkie-Morris, Mr Wilkie-Morris and his co-offenders had lured the victim to an address, where Mr Wilkie-Morris struck the victim on the head and knee with a hammer. One of the co-offenders then stabbed the victim three times causing his death. The starting point was four and a half years’ imprisonment, acknowledging aggravating factors of premeditation, attacks to the head, and multiple attackers.
(b)In Tout v Police, Mr Tout had attacked four people, three of whom with a knife, resulting in moderate injuries to them. The starting point on the injuring charge was three and a half years’ imprisonment.
(c)In Rapana v R, Mr Rapana and his co-offender were at a party when the co-offender rushed at the victim with a knife and stabbed him. The victim put his hand up in defence, so the primary stabbing injury was to a tendon in his hand. The appellant and the co-offender then both physically assaulted the victim, leaving him with lasting impacts. The Court of Appeal upheld a starting point of four years for Mr Rapana on the basis he did not know the victim had been stabbed when he joined in the assault.
(d)In Te Ruki v R, Mr Te Ruki watched as three Black Power associates beat, kicked, and stomped on the victim’s face, head and body. It was said that the assault was because the victim had threatened a family member of the gang president. Although Mr Te Ruki did not take part in the violence, the Court of Appeal considered that he was equally culpable and considered a starting point of five and a half years’ imprisonment was appropriate. The charge in that case was wounding with intent to cause grievous bodily harm.
22 R v Wilkie-Morris, above n 10; Tout v Police, above n 10; Rapana v R, above n 10; Te Ruki v R, above n 10; Aitken v R, above n 10; and Parker v Police, above n 10.
(e)In Aitken v R, Mr Aitken violently attacked a person who he believed had assaulted his son a few days before, punching the victim in the head and upper body, and stomping and kicking him once he was on the ground. On appeal, the Court of Appeal upheld a starting point of seven years’ imprisonment.
(f)In Parker v Police, Mr Parker and five others assaulted four victims while at a party. Mr Parker personally punched one of the victims in the side of the head from behind, and then with the other five offenders, punched, kicked, and stomped on another victim. He also assaulted two other people who attempted to assist. Mr Parker and his co-offenders were charged with wounding with intent to injure, and a starting point of three years and six months’ imprisonment for that charge was upheld on appeal.
[35] Mr Harvey submitted that Aitken v R was the most useful comparator, and also referred to Taylor v R, in which the Court of Appeal upheld a starting point of seven years’ imprisonment for one charge of injuring with intent to cause grievous bodily harm.23 In that case, Mr Taylor had struck the victim with a steel pole, and then as the victim lay on the ground, continued to strike his head and body. As a result of the attack the complainant suffered several broken bones, including both wrists and multiple rib fractures. He sustained lacerations to his head, arms and shoulders and multiple soft tissue injuries.
[36] Mr Bourke submits that Mr Tamati’s offending is most factually similar to that of Wilkie-Morris. I agree with Mr Harvey that Aitken is the most helpful and similar. While it lacks the multiple attackers’ element, it involved premeditation, vigilante action, extreme violence and serious injury. It was a response to a real or perceived altercation between the victim and Mr Aitken’s son. I note also that in that case the Court of Appeal stated:24
The Judge placed Mr Aitken’s offending between bands two and three, adopting a starting point of seven years’ imprisonment. We agree that this
23 Taylor v R, above n 11.
24 Above n 10, at [25]. Footnotes omitted
starting point is within the range where bands two and three could overlap, after adjusting the Taueki bands to account for the maximum penalty of 10 years’ imprisonment.
[37] I consider that statement supports the approach taken by the District Court Judge in the present case as to the starting point. The level of violence in Taylor, although involving a weapon and only one attacker, was also similar to the present case. I do not accept Mr Bourke’s submission that there is no evidence of lifetime effects on Mr Koha, as compared to Aitkin. In my view, it was open to the Judge to infer as a matter of common sense that the effects of the injuries suffered would have continuing impacts on Mr Koha.
[38]As to the cases relied upon by Mr Bourke:
(a)Parker v Police, although somewhat factually similar, is not of assistance as it did not involve grievous bodily harm offending. Wounding with intent to injure carries a lesser maximum penalty of seven years’ imprisonment, and this case therefore may be distinguished. The same can be said of Te Ruki, which involved a charge of wounding with intent to cause grievous bodily harm, an offence which carries a higher maximum penalty of 14 years’ imprisonment, and two defendants who did not participate in the violence inflicted at all.
(b)I agree with the District Court Judge’s conclusion that Wilkie-Morris, Tout, and Rapana were less serious than the present case, which involved serious injuries and more aggravating factors.
[39] While I accept that it may have been open to the Judge to choose a lesser starting point of approximately six and a half years’ imprisonment to account for the difference in Mr Tamati and Mr Raana-Parker’s culpabilities, that is not a matter that will support a successful appeal. Sentencing is a matter of judicial evaluation, rather than a mathematical exercise.25 I consider that overall, given the aggravating factors
25 See Te Ao v R, above n 18, at [16]–[19].
involved in Mr Tamati’s offending, and his specific culpability, that a starting point of seven years’ imprisonment was within range.
[40] For those reasons, I am not satisfied that the Judge erred in adopting a starting point that was excessive, based on incorrect facts, or a misunderstanding as to Mr Tamati’s role. This ground of appeal must accordingly be dismissed.
The guilty plea discount
Submissions for Mr Tamati
[41] Mr Bourke submits that Mr Tamati should have received at least a 20 per cent discount for his guilty plea. He notes that Mr Tamati first offered to plead at a reasonably early stage in July 2022, and submits that an offender who is convicted of an offence for which he or she had earlier communicated a willingness to plead guilty should receive the maximum reduction available at the stage of proceedings at which the willingness was communicated. He says that the Judge provided no explanation as to why only a 15 per cent discount was available, notwithstanding that Mr Tamati’s plea was not at the very earliest stage.
Submissions for the Crown
[42] Mr Harvey submits that no more than 15 per cent was warranted in the circumstances, given that the appellant’s plea was offered nearly two years after his initial not guilty plea. Mr Harvey notes that Mr Tamati’s first appearance was on 16 October 2020, his not guilty plea was entered on 22 October 2020, and then Mr Tamati offered to plead guilty to the reduced charge of injuring with intent to cause grievous bodily harm on 13 July 2022. Due to a change in the Crown prosecutor, resolution was not accepted by all counsel until the beginning of April 2023. He says that Mr Tamati’s guilty plea was not sufficiently early to allow for the full benefit when the plea is entered at the first reasonable opportunity.
Discussion
[43] In Hessell v R, the Supreme Court stated: “All circumstances in which the plea was entered must be addressed, not merely the timing”,26 and further that:27
In summary, the policy reasons for giving credit for guilty pleas in sentencing do not justify an approach which treats as irrelevant, or of peripheral relevance, the circumstances in which the plea is entered and what they indicate about acceptance of responsibility for the offending. The credit given should also legitimately reflect the benefits provided to the system and to participants in it. Overall, the sentencing task remains one of evaluation that leads to what the judge is satisfied is the right sentence for offending in light of the offender‘s acknowledgement of guilt and all other relevant circumstances.
[44] A guilty plea discount must reflect all the circumstances in which the plea is entered, including its timing, and the strength of the prosecution case.28 It is a matter of evaluation for the sentencing judge.29
[45] In the present case, Mr Tamati did not plead guilty at the earliest reasonable possible opportunity. He first offered to plead guilty nearly two years after originally entering a not guilty plea. As a result of circumstances out of Mr Tamati’s control, his plea was not able to be entered until some time later, in April 2023. Nevertheless, Mr Tamati and his co-offenders, by the time their pleas were entered, had already forced Mr Koha to give oral evidence in 2021, and apparently, influenced him through their associates to provide unhelpful evidence. The plea was not entered at the earliest reasonable possible opportunity, in the circumstances.
[46] As to the strength of the prosecution case, I agree with Mr Harvey that it was strong, particularly given the Court of Appeal’s judgment as to Mr Koha’s evidence. In the circumstances, I agree that Mr Tamati pleaded guilty in circumstances where there was little prospect of him avoiding responsibility for the offending.30 Although it is wrong to approach the discount on the basis that the stronger the Crown case the lower the guilty plea discount,31 and the Judge did not comment on this factor, I accept
26 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [51]. (emphasis in original)
27 At [65].
28 Hessell v R, above n 26, at [74].
29 At [77].
30 See Jefferies-Smith v R [2020] NZCA 315 at [45].
31 Millar v R [2019] NZCA 570 at [36].
that it supports a conclusion that the Judge did not err in only granting a 15 per cent discount. It is relevant also to record that the Judge applied a global discount for mitigating features and time spent on electronically monitored bail that was slightly higher than expressly sought by defence counsel, including a discount for remorse. In addition, the Judge did not apply an uplift for previous convictions although that was conceded as appropriate.
[47] While in my view a guilty plea discount of 20 per cent would also have been within the range available to the Judge, the discount of 15 per cent was not out of range. This ground of appeal must also fail.
Was the sentence manifestly excessive?
[48] I have concluded that neither of Mr Tamati’s grounds of appeal can be successful. Both the starting point and the guilty plea discount were within the range available to the Judge, and therefore the end sentence was not manifestly excessive.
Result
[49]For the reasons above, Mr Tamati’s appeal is dismissed.
McQueen J
Solicitors:
Crown Law Office, Wellington for Respondent
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